I suggest that Lieberman is in error. Ex Parte Milligan concerned actions taken while habeas corpus was suspended as a result of legislation passed by Congress on March 3, 1863. Who may suspend habeas corpus was not an issue before the court in this case.
[nonsequitur] I suggest that Lieberman is in error. Ex Parte Milligan concerned actions taken while habeas corpus was suspended as a result of legislation passed by Congress on March 3, 1863. Who may suspend habeas corpus was not an issue before the court in this case.
It would seem to me that the issue of who may lawfully suspend habeas corpus, and under what circumstances, will only arrive at the Supreme Court when somebody does suspend the writ. Otherwise, there would be no case to bring to court.
The court explicitly considered the Act of March 3, 1863.
The court explicitly noted that the president had suspended the writ.
The court ruled that the writ must issue.
From Ex Parte Milligan
Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.
The first question, therefore-Ought the writ to issue?-must be answered in the affirmative. And it is equally clear that he was entitled to the discharge prayed for.
The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on the return made to it the court decides whether the party applying is denied the right of proceeding any further with it. If the military trial of Milligan was contrary to law, then he was entitled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3d, 1863.
http://laws.findlaw.com/us/71/2.html
U.S. Supreme Court EX PARTE MILLIGAN, 71 U.S. 2 (1866) .
December Term, 1866
THIS case came before the court upon a certificate of division from the judges of the Circuit Court for Indiana, on a petition for discharge from unlawful imprisonment.
The case was thus:
An act of Congress-the Judiciary Act of 1789, section 14-enacts that the Circuit Courts of the United States 'Shall have power to issue writs of habeas corpus. And that either of the justices of the Supreme Court, as well as judges of the District Court, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided,' &c.
Another act-that of March 3d, 1863, 'relating to habeas corpus, and regulating judicial proceedings in certain cases'-an act passed in the midst of the Rebellion-makes various provisions in regard to the subject of it.
The first section authorizes the suspension, during the Rebellion, of the writ of habeas corpus, throughout the United States, by the President.
Two following sections limited the authority in certain respects.
The second section required that lists of all persons, being citizens of States in which the administration of the laws had continued unimpaired in the Federal courts, who were then held, or might thereafter be held, as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished by the Secretary of State and Secretary of War to the judges of the Circuit and District Courts. These lists were to contain the names of all persons, residing within their respective jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in attendance upon any of these courts should terminate its session without proceeding by indictment or otherwise against any prisoner named in the list, that the judge of the court should forth-with make an order that such prisoner, desiring a discharge, should be brought before him or the court to be discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to appear, as the court might direct, to be further dealt with according to law. Every officer of the United States having custody of such prisoners was required to obey and execute the judge's order, under penalty, for refusal or delay, of fine and imprisonment.
The third section enacts, in case lists of persons other than prisoners of war then held in confinement, or thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination of a session of the grand jury without indictment or presentment, might, by petition alleging the facts and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the terms and conditions prescribed in the second section.
This act made it the duty of the District Attorney of the United States to attend examinations on petitions for discharge.
By proclamation, dated the 15th September following the President reciting this statute suspended the privilege of the writ in the cases where, by his authority, military, naval, and civil officers of the United States 'hold persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . . . or belonging to the land or naval force of the United States, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval services, by authority of the President, or for resisting a draft, or for any other offence against the military or naval service.'
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